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J UNITED STATES OF AMERICA. J; 



CONSTITUTIONAL ARGUMENTS 



INDICATING THE 



RIGHTS AND POLICY 



THE SOUTHERN STATES. 



BY CHARLES STEVENS. 




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PRINTED BY J. S. BURGES, 44 QUEEN-STREET- 

1832. 






The following pages contain the substance* 
(modified in form and enlarged in the argument,) 
of a corresponding series of resolutions, prepared, 
whilst in attendance as a member of the Union 
Convention, lately held in Columbia: with a 
view, rather to systematize my own thoughts, on 
the main question of their deliberations, than to 
submit them to the consideration of that body, or 
of the public. They attempt to illustrate, by ana- 
lytic argument, the chief constitutional questions 
which were supposed to be involved in the propo- 
sition for a Southern Convention, then under dis- 
cussion : and comprehend what the writer trusts, 
will be received as an apology for his own course, 
if not as a satisfactory elucidation of the doc- 
trines and opinions which he honestly entertains. 

The arrangement is that of detached proposi- 
tions ; the whole of which, however, will be found 
intimately connected, in the relation they bear to 
the main result. 



CONSTITUTIONAL ARGUMENTS 



sr 



INDICATING 

THE RIGHTS AND POLICY OF 

THE SOUTHERN STATES. 



Proposition 1st. It results from the nature of a federative 
compact between equal and independent Stales, purporting 
to create, a common government of limited powers, for de- 
lined objects of utility, common to all the parties; that the 
Government thus created (whether appointed and controlled 
by a simple majority of the people, on Republican princi- 
ples; or however otherwise modified by its Constitution) 
cannot be the ultimate judge of the extent cf its own pow- 
ers: for this would in effect, render the limitations of its 
powers, illusory; and the character of the government (in 
reference to the parties creating it) despotic: and therefore 
wholly incapable of affording any security for the reserved 
unalienated rights of the several parties to the compact; 
the secure preservation of which, must in reason be regard- 
ed, as the cardinal intention, in adopting the confedera- 
ted form of government. 

2. To retain in the individual members of such a 
confederacy of States, power of subsequent control, over 
the acts of their common Government; to which by the 
terms of their compact, they have fully delegated the high 
attributes of Sovereignty, necessary for maintaining unity 
in their joint relation to foreign nations; and for preserving 
domestic harmony amongst themselves, in reference to each 
other, and to the confederated body; would be plainly sub- 
versive of the intention of such a confederacy: being obvi- 



4 

ously inconsistent, with the uniformity of its action, and 
the security of its existence. For if a restraining or nega- 
tive power, in each State of a numerous confederacy were 
admitted to be necessary for their individual safety, still il 
would be more convenient, more prudent, and more effectu- 
al, to require their unanimous concurrence, as a prelimi- 
nary to legislation; than to claim for each State separate- 
ly, a recognised authority to embarrass the common Go- 
vernment at pleasure, by partially arresting the action 
thereof, within its own particular limits; and (to that ex- 
tent) destroying its existence, as a common Government. — 
This right of subsequent State control (or Nullification) if it 
exist at all — to be available, must be one of arbitrary discre- 
tion in eaeh individual member: without responsibility: not 
susceptible, therefore, of any restraint or regulation for the 
common good: and consequently, a right which in its free 
exercise, could not fail to generate infinite confusion, and 
to defeat on many occasions, the great purposes for which a 
common Government was established. 

An act of Nullification, either by a single State (or by any 
minority of the States less than are allowed to possess a con- 
trol over the Constitution) must on these principles be con- 
sidered highly irregular and portentous of danger; both to 
the Union, and the party undertaking to set aside its laws, 
The case has not been provided for in anticipation: and its 
results must depend much on the temper of all parties — the 
reasonableness of the demands on one side, and the dispo- 
sition to conciliate on the other. If the adverse claims of 
one party be not voluntarily conceded, or those of both ad- 
justed through a General Convention, it would be most desi- 
rable in order to avoid the distractions of civil conflict, to 
consider the act of Nullification, as equivalent in fact, tho' 
not in name, or profession, to a formal secession from the 
compact of Union; since avowed secession, would enable the 
parties to regulate all proceedings, whether of negociaticn: 



or hostility, by the received rules of international law*. The 
right of a party to the compact of Union to recede from her 
engagement to her co-States, and to release her own citizens 
from their allegiance to the Union consequent to that en- 
gagement; is here assumed as incontestable. Yet it could 
assuredly only be exercised, under a full responsibility to 
the rest of the States; for every equitable claim, upon the 
seceding party, growing out of previous relations, or justi- 
fied by a prudent regard to dangers apprehended. 

The adjustment of these equitable claims, would be more 
or less difficult, according to the relative geographical posi- 
tion of the seceding State or Territory: and the necessary 
interference of interests, depending on this circumstance 
might be supposed in most cases, to render the existence of 
a separate independent Government wholly inadmissible: 
or in other words to justify conquest and a forced submission 
to terms, dictated by the policy of contiguous States, still at- 
tached to the Union. 

3. The right of ultimate constructioji, over a writ- 
ten compact of divided Sovereignty, between the individual 
States of a confederacy, on the one hand; and a common 
Government of limited powers on the other, is identical 
with the power of altering its terms; and cannot therefore 
be safely deposited in any other hands, than those authorised 
to amend the compact itself; nor even supposed, without 
manifest incongruity, to be separated from the power of a- 
mendment.* 

In cases of disputed pretensions to authority amongst 
Sovereign bodies so related to each other, the obvious reme- 
dy is to make provision, for an easy reference of the con- 
tested matter, (at the option of either party deeming itself 
aggrieved by the acts of the other; and at the same time, 
unwilling to submit an attribute of its high political Sove- 
* See Appendix. 



reiguty, to an ordinary judicial arbitrament) to the tribunal 
competent to amend the compact: whose decision* inde- 
pendent of argument, or regard to technical rules of con- 
struction, must necessarily be final and conclusive, between 
them. 

Three-fourths the of States of this Union, being alone au- 
thorised to amend, or make alterations, in the Federal Con- 
stitution (except where the assent of a State individually 
ajf'eetedxs also required,) the concurrence of the same nu- 
merical proportion of the States by their Legislatures or 
Conventions, ought also to be required in order to determine 
affirmatively, in favor of the Federal Government, doubtful 
questions, of disputed power, claimed or practically assu- 
med by that Government, as implied in the grants of the 
Constitution; when contested by one or more of the Sove- 
reign States, as ungranted, and therefore assumed in dero- 
gation from the reserved rights, inherently appertaining to 
the separate States, or to their citizens. To compel a State, 
deeming itself aggrieved by the acts of the Federal Govern- 
ment, and appealing to its co-Stales as Federal arbiters, a- 
gainst any supposed aggression of the governing majority — 
to sustain its complaints by the positive affirmance in its fa- 
vor, of three-fourths of them, is virtually to sanction ev- 
ery usurpation of a majority, in violation of the funda- 
mental Federal principle of our system; and to deprive a 
party aggrieved, of all reasonable hope of relief, in that 
mode: since it is evident, that the concurrence of a simple 
majority of Congress in its views, would have been sulhcient 
to have prevented, or removed the oppression. 

On the contrary the Constitutional Compact, with salutary 
preference for the rights of the several States, always liable 
to invasion, by a governing majority of the Union; as a coun- 
terpoise to the otherwise irresistable tyranny of such a ma- 
jority, if enabled to confer new powers on themselves at 
discretion, has distinctly and unequivocally reserved to any 



minority of these States, exceeding one-fourth of them, 
the only substantial and efficient security, it was possible to 
provide against such a clanger; by retaining in the hands of 
that minority, an absolute and unqualified negative for self- 
defence, over the acts of any less majority than three-fourths 
of the whole number: thereby guarding cautiously the fed- 
erative character of the system, against the manifest ten- 
dency of its practical administration to an absorption of all 
power to itself; and erecting a permanent barrier against 
the despotism of a majority of the whole Union, over the 
rights justly appertaining to its members. 

It is therefore strictly conformable to the analogy of our 
Constitution, considered in reference to the mode of its a- 
doption, as well as in regard to its provision for future amend- 
ments; and it is absolutely necessary for sustaining the ad- 
mitted relation of the parties to each other, and for giving 
effect to the original federative principles, which are the true 
basis of the whole structure; that the same stipulated minor- 
ity of the States, possessing an undisputed right, to prevent 
any enlargement of federal powers, when attempted by the 
interpolation of express grants into the Constitution; should 
practically possess an equally efficacious control, for preven- 
ting the usurpation of such powers, whether by legislative 
or judicial construction, or by any other evasive means, 
inconsistent with their safety. This right of control to be 
effective, presupposes an unqualified negative, in the Con- 
stitutional minority of the States, on every act of the Gen- 
eral Government, (so far at least as leading principles are to 
be established) which may be considered by them to be un- 
warranted by the Constitution, in its letter, or in its spirit: 
since otherwise there is no power, however questionable or 
■unequal in its effects on the interests of the different States, 
or geographical divisions of the Union, which may not be 
permanently assumed at pleasure, by a governing majori- 
ty: a species of usurpation against which our system affords 



8 

no other adequate check, either in the judiciary or any oth- 
er regular depository of its ordinary powers. 

The judicial department, which to a certain extent may 
sometimes be able to apply a corrective to abuses authorised 
or committed by other branches having been expressly re- 
stricted by its organization to limited classes of cases, in 
law and equity, excluding the exercise of direct political 
poiver, is seldom competent to afford relief, or even to enter- 
tain on their substantial merits, the real questions on which 
political controversies usually depend. To whatever res- 
pect or binding efficacy its decisions may be entitled, with- 
in the legitimate sphere of its action, the rights of Sove- 
reign States, can never be conclusively settled, nor their 
differences terminated, by being introduced into judicial 
proceedings, as mere incidents to subordinate litigation. 

It is no valid objection to the admission of a negative for 
defensive purposes, in a minority of the States over the il- 
limitable pretensions to power, which may be founded on 
construction (precisely equivalent to that which is admitted 
to exist for the same end, in regard to new powers claimed 
by grant,) that real alterations of the Constitution, might in 
this manner be introduced by a minority of the States, when 
called upon as arbiters to interpose, on the complaint of a 
party objecting, perhaps, to a long received construction 
thereof. The powers of the Federal Government were not 
conferred, by the act of a majority of the people of the 
United States collectively, or even by a mere majority of the 
States. The distinct assent of three-fourths was indispen- 
sable to its adoption, even partially, amongst the approving 
States: nor did it become obligatory on any State without its 
own individual consent. The continued existence of the 
Union therefore, under any received construction of its 
powers, may safely be trusted to the continued approbation 
of the same numerical majority of the States, which, in the 
vigilance of liberty, characteristic of the days of our im- 






9 

mediate fathers, was esteemed necessary, to justify the a- 
lienation of a single particle of separate supremacy , by any 
-State of the Confederacy. This anomalous operation of our 
system (if such it must he considered) is wholly in favor of 
liberty: which can only be safe under the guardianship of 
those interested in its preservation: whereas the indiscreet 
extension of the powers of the Federal Government, wheth- 
er by grant or by -construction, tends directly to bring un- 
.der the control of a majority of the Union, the separate and 
peculiar rights of its members: in which the majority do 
not equally participate: and against which they may be sup- 
posed to entertain adverse prejudices; if their interests do 
not directly come into conflict. 

4. The principie of partial protection to favored 
branches of domestic Industry, as now incorporated into the 
Tariff laws of the United States, by repeated acts of Con- 
gress; and long sustained by small majorities of that body, 
is peculiarly inapplicable to our Federal system. That Gov- 
ernment is confessedly limited by its Constitution to certain 
enumerated objects of legislation, embracing interests strict- 
ly common to all its members: and in order to effect these 
defined purposes only, it is empowered to la}' and collect 
uniform taxes, duties and imposts. The authority thus as- 
sumed by bold construction of a phraseology, perhaps not 
sufficiently guarded, to levy taxes on our foreign imports, 
amounting sometimes to prohibition, with a leading view to 
their operation as bounties to favored pursuits of private 
industry, not required for national defence, or for any other 
purpose of utility, common to all the States, — is, a system- 
atic violation of the principle of Federal equality in its 
taxation: and an utter disregard of the fundamental rule of 
equal justice, in apportioning the contributions, levied by 
its authority on the States and sections of this Union: pro- 



id 

Suctive moreover of equally capricious unfairness-, in it3 ef 
fects on individuals and classes of the same locality. 

No Slate or sectional division of this Union which re- 
garded as a whole, or as a detached community, is benefit- 
ted by a particular imposition nominally for the general re- 
venue, can in any proper sense be considered, as sharing in 
its burthens; however unequally the advantages, and a por- 
tion of the attendant evils may be distributed amongst its 
own citizens. On the contrary such a State or geographical 
section, actually receives a bounty from the common treas- 
ury, without an equivalent; equal to the pecuniary benefit 
enjoyed by its citizens. 

So on the other hand, every duty or impost,, levied for the 
encouragement of any domestic production, not required for 
some purpose of common necessity to the whole Confedera- 
cy, is in respect to the States or sectional divisions, not con- 
cerned in the production of the favored article, a tax of un- 
mitigated oppression.. 

It is idle to expect that any scheme of mutual compensa- 
tion amongst discordant interests, can possibly result in the 
production of positive or of relative justice; whilst in fact 
the governing motive of choice in selecting the objects of 
such taxation is always to secure special advantages; or at 
best to palliate its own gross injustice. Equal protection 
fo alL to all the interests and industrious pursuits of any 
community, by a complicated scheme of imposts or other 
taxes,- is a solecism in terms; for, if it were practicable, 
even without any expense, or other inconvenience, it would 
load to exactly the same issue as would the denial of protec- 
tion to any. Every advantage therefore required by the 
legislative extension of any interest beyond its natural 
proportion toothers; must as a general rule be produced, 
by the corresponding depression of others less favored, be 
low the standard of equal and impartial justice. 

The great object proposed by taxes restricting foreiscr. 



11 

importation, is to secure to the domestic producer of a rival 
commodity, a monopoly or at least a pecuniary 'preference, 
ia the home market. This is accomplished by compelling 
*m advance in the proper price of the foreign article, by 
means of the tax imposed upon it; to the point, at which 
the same commodity or a substitute for it, can be profitably 
furnished by the domestic producer. Its effect is not only 
to tax consumption, and lessen Us amount, by depriving the 
public of a cheaper and more abundant supply; but also, to 
derange the established course of commerce, through ail its 
ramifications. Jt obviously narroivs the range of advanta- 
geous foreign exchanges, otherwise open to the exporter of 
our domestic surplus; and thereby so far lessens the rela- 
tive value of that surplus itself: which in effect, if not in 
name, reduces the real worth, of all produce raised for 
exportation: since value is truly measured, not by the nom- 
inal price of an article; but by the command, which that 
price possesses over the subjects, of necessary or desired 
commercial exchange. 

For these inevitable evils of restrictive laws operating on 
foreign commerce, there are supposed to be some counter- 
acting or compensating advantages: but the advantages will 
be found to be chiefly confined to the vicinity in which the 
manufacturing establishments or other cherished improve- 
ments are located: whilst the mischiefs involved, are co- 
extensive with the restriction; or rather, are aggravated by 
distance from their favored seat. 

When both the good and evil are supposed to be equally 
diffused over the whole territory whose trade is thus re- 
stricted, the policy of limited protection to useful branches 
of domestic industry, cautiously pursued, (however dan- 
gerous) may not always be unwise or eventually injurious. 
It may even be admitted to be sometimes beneficial in de- 
veloping more rapidly than the natural process of things, 
latent resources for new adventurers; which though adapted 



12 

to the condition of a country supposed to be advancing it; 
the career of mechanical and other useful improvement?, 
yet for want of experience and acquired skill, might re- 
main long unattempted, without alluring capital to the dan- 
gers of a new enterprise, by the assurance of a market for 
its productions, and a pledge to sustain its efforts, against 
the depreciating effects of an increased supply; in markets 
previously stocked with the same commodity from other 
quarters. 

To this extent it may doubtless, sometimes, be the dic- 
tate of a prudent forecast, to assist the difficult struggles 
for birth, of infantile arts requiring great previous invest- 
ments to insure success: in a country well prepared for their 
introduction, and where the chief difficulty to be obviated, 
is, a disadvantageous contention with the established course 
of trade. Such a case may perhaps be allowed to consti- 
tute an exception to the benign rule of unlimited freedom 
in all the operations of commerce: and so far, to justify the 
seeming absurdity of an enlightened people, voluntarily 
imposing shackles- on their own profitable exchanges. The 
reason of the exception, however, pre-supposcs that no com- 
munity should be required to submit to such restraints and 
sacrifices of the advantages in its possession, but one willing 
to endure them, under the expectation of greater eventual 
gains from the naturalization of new and valuable arts with- 
in its own territorial boundaries. It surely cannot be urged 
in justification of the forced extension of the same restric- 
tions (even supposing them wise and salutary to a part) 
over a vastly extensive territory, divided into separate and 
only federally allied communities; a great proportion of 
which is admitted to have a dissimilar and even a directly 
hostile interest, ruinously affected by the policy, which 
breaks the chain of reciprocity, uniting them to their 
chief and most necessary customers. 

If the established commerce of any people, connected by 



V3 

federal ties with another, perhaps a little more advanced in 
the arts than themselves, who can in no way, or only by re- 
mote relations, be participators in the advantages expected 
by the latter from the forced introduction of new branches 
of art and industry, is to be the sport of every speculating 
attempt to build up precociously new and uncertain inte- 
rests, foreign to themselves, and wholly local in the advan- 
tages they diffuse, as well as in the place of their existence;, 
and if both their trade and their consumption are to be in- 
definitely taxed without their consent, to ensure the suc- 
cess of every imprudent experiment those interests may 
suggest; it is a state of things which must be admitted to 
comprise in itself the most mischievous consequences, of 
national dependence, or even of colonial subordination. 
It is moreover a form of colonial dependence, likely to 
become, vastly more oppressive, than the condition of 
early colonies, depending on a parent nation; which al- 
ready occupies an advanced position in the scale of arts, as 
compared with other portions of the civilized world. In 
this latter case, a monopoly of the privilege of supplying a 
colonial market with the artificial products of a protecting 
parent nation; may be said only to effect by compulsion* 
exchanges, which the best interest of parties so situated 
would have spontaneously dictated. But for a people, who 
without legislative assistance could not profitably have 
supplied even their own immediate domestic market; by 
the free or pretended construction of a merely federative- 
engagement, limited in its design to matters of strictly mu- 
tual concern, to subject the commercial energies of other 
States, politically their equals, and with interests on this 
subject wholly irreconcileable, to such a condition of sub- 
ordination as is implied in the adoption of general protect- 
ing laws for their own exclusive benefit, without general 
consent; is not more humiliating, to the just pride of po- 
litical equality; than it must in practice prove- baneful to 



H 

he hopes of the injured; and blighting lo the suurces oP 
their prosperity. 

Under such a system, forced upon them by combina- 
tions of adverse interests, too powerful to be resisted, where 
plurality is the only criterion of right; there can belittle 
prospect of safety for the great agricultural interests of the 
Southern States; wnich do and always must depend for their 
value on the greatest possible facility of access, both for ex- 
portation, and for importation to the general markets of the 
world. For these leading interests there can be no greater 
calamity, than that state of things, in which their foreign 
exchange is subjected to the arbitrary regulation of others, 
who either have, or imagine they have, a direct advan- 
tage in the interdiction of its most profitable return, 

5. The lavish expenditure by the General Government 
of the common funds of the Union thus unequally levied 
on its members; for purposes of local improvements not re-> 
quired to effect legitimate objects connected with its par- 
ticular trusts; or with the common good of all the parties to 
the compact (however beneficial to particular States or sec- 
tions,) is totally at variance with its proper functions. Its 
unavoidable tendency is to introduce a system of favorit- 
ism, involving relative injustice and indirect oppression, 
and to generate a spirit of dependence on its bounty, un- 
congenial with the true relation of that Government to the 
States; and not less corrupting to its dispensers, than to 
its receivers. 

6. Under a form of Government both federative and 
popular, like that of the American Union, blending in its 
construction these opposite principles, to cement together 
its naturally repulsive materials, into artificial cohesion; a 
Government which comprehends within its widely extended - 
territory, all the contrariety of interests that can proceed 



15 

from physical diversity of climate and production; as well 
as from contrasts in the fundamental laws and usages of its 
members, affecting the civil condition of their respective 
population, and their capacity for different industrious pur- 
suits; the admission of a rule of unequal taxation, and 
expenditure from favor, is manifestly, self-destructive: 
leading to the separation of its elementary constituent 
parts, by the rivalship it creates; and by the intolerable 
abuses it engenders. The irresistible tendency of such par- 
tiality is to invite combinations amongst portions of these, 
conflicting interests in favorable locations for mutual co- 
operation; sufficiently extensive to command the majority 
of an elective Congress: and thereby to render the com- 
mon Government of all the States subservient to purposes 
ef selfishly local aggrandisement ; and by necessary con- 
sequence of corresponding local oppression. Combinations 
like these, must soon destroy the equilibrium of our politi- 
cal elements; whose mutual strife, like the well balanced 
antagonist principles in nature, would otherwise have re- 
sulted in the production of universal harmony. As long as 
the3 r remain unchecked, by a recognised self-defensive 
power in the interests assailed, the evil manifestly tends, 
to perpetuate itself. It glosses over its complexion to 
deceive; and dresses its deformity for popular delusion, 
through the easy alliances it contracts, with the race of am- 
bitious politicians: whose hopes of promotion, to patron- 
age and power, are most surely gratified, by the prostitution 
of eloquence and science, to the service of avarice and mo- 
nopoly: until the moral perception of the community is in 
danger of becoming permanently debauched: and the fair 
ilaims of social justice, have almost ceased to find a res^ 
ponse, even in the bosom of Religion herself. 

7. The Southern States of this Union possess in many 
Respects distinct, peculiar, and highly important interests* 



16 

t'.onmion tft them and demanding their utmost vigilance. 
They arc moreover in a permanent minority in the Legisla- 
tive Departments of the General Government, which claims 
to extend its own powers at discretion, hy the mere plurali- 
ty of votes. In regard to those interests therefore they are 
altogether defenceless, against the aggressions of an uncon- 
trolable majority in Congress, co-operating together for se- 
curing selfish local advantages at the common expense, re- 
gardless alike of the limits prescribed to them by the fede- 
itive character of that Government, and the manifest claims 
!• ,rocal justice. It has therefore become no less the 
'nn the interest of the Southern States, to demand in 
t, that the theoretic checks of the Constitution, should 
lered operative in practice by a distinct recognition 
fundamental principle of our system, of an absolute 
;ative for self-defence, in the prescribed minority of the 
Hes, over the assumption of oppressive powers, by forced 
Sonstruction from perverted grants: ;is effectual as the au- 
thority of the same minority is admitted to be, against the 
introduction of such powers into the body of the Constitu- 
tion by amendment through the agency of the States. 

If there be in truth no practical check to the assumption 
of ungranted power, whilst upheld by the people and 
States, on whom a majority of the members of Congress 
-depend for their appointments, the provision of the Consti- 
tution concerning amendments by the States is wholly su- 
perfluous: since every desired power, which it might be 
•presumed the States would reject, if consulted in their 
primitive character as the creators and arbiters of the com- 
pact, may on that supposition, be securely exercised by 
Congress, under the licence of pretended construction, h' 
this be admitted, the best feature of the system on which the 
hopes of our fathers perhaps too credulously relied, as ade- 
quate to protect the separate parties to the compact in their 
Mnalienated rights of Sovereignty, against the violence q> 



17 

rm overwhelming democracy has lost its vital energy: and 
the crisis imperiously demands our best exertions to effeel 
its resuscitation. The remedial provisions of the Constitu- 
tion may he defective; and the forms prescribed for ena- 
bling a competent minority to restrain usurpation in the 
mode it was chiefly apprehended, may not be sufficient to 
restrain it with equal effect in a mode of assault not dis- 
tinctly provided against. But the essential right itself man- 
ifestly exists; on which, as to us at least, the value of the 
'Constitution mainly depends. A constitutional right of 
self-defence in a stipulated minority against every encroach- 
ment, which as far as the Southern States are concerned is 
their only protecting shield, against ruinous contact with a 
power hostile by the instinct of self-interest and otherwise 
irresistible, can never be abandoned without treason to them- 
selves and their posterity; can never be abandoned, until 
1he Constitution itself is abandoned; as it must be, when- 
ever the destruction of its federative characteristics can no 
longer he prevented. 

8. A Convention of the Southern States, would properly 
•have for its object an enquiry into facts, connected with 
their supposed grievances, their causes and their effects, 
near or remote, affecting or likely to affect the particular in- 
terests, and general prosperity of those States. It would 
examine temperately, the frequent complaints of those 
States in reference to the Tariff, in its principle and in its 
true operation, locally and universally; the appropriation 
of the revenues of the Union to purposes of internal im- 
provement, and the abuses with which it is coupled from 
necessity or choice; and how far both systems, and their at- 
tendant evils, may be regarded as permanent or transient. 
An agreement in the true state of facts on these points will 
lead of necessity to the proper inferences whether the Gov- 
ernment of the Union, as now conducted, or as it is likely 



is 

hereafter to be, is a safe depository of the vital interests o 
the Southern States which it assumes to regulate at pleasure 
whether the Constitution in its present form, affords an 
efficient practical safeguard against dangers justly to be aj 
prehended; or whether it be expedient to demand an; 
change, either in its formal or its substantial provisions 
The results of such enquiries might be reported to the dif 
ferent States concurring in the call of a Southern Conven 
tion; all of whom would afterwards act separately upon it 
recommendations. 

But fore the action of the Southern Convention itse{ 
must terminate': and each State remain free to approve o 
disapprove the course recommended. In all this there i 
nothing unconstitutional; or even equivocal; when judge* 
by a fair constitutional standard. It seems moreover de 
sirable, though not essential, that the Legislatures of tin 
different Southern States should directly sanction the meet 
ing of such a Convention, either by appointing the mem 
bers or recommending their appointments by the people ii 
districts: and that the report of the Convention should be 
addressed to them; since their concurrence is indispensible 
to the prosecution of any concerted plan of proceeding 
amongst the States themselves. 

Propositions for amending the Constitution of the Unite 
States, can only originate with Congress or with the Leg' 
latures of the several States. As it would hardly be re 
sonable to expect the previous concurrence of two-thirds ^ 
all the States in any application it may be proposed 
make, for specific amendments of the Constitution, or i 
the call of a General Convention for review of the who 
compact of Union; the voluntary action of Congres. 
would be highly desirable; and could not in decent courtc 
sy be refused to the respectful solicitation of so man; 
States, on an occasion so solemn; and for an avowed pur- 
pose, not more indicative, of their own deep convictions. 



19 

of wrongs sustained from the hands of their brethren; than 
of their profound attachment to the Union itself, and of 
their sincere desire to insure its perpetuity, on the terms of 
the original contract — regarding the equality of the Slates, 
and thesacrcdness of their unalienated Rights, as its basis. 
To Congress therefore, the application of the Southern 
States for the call of a Convention of all the States, or for 
the submission of specific amendments, to the different 
States of the Union, must of necessity be addressed: ac- 
companied perhaps with cotemporaneous appeals to the 
States themselves, urging on them by suitable arguments the 
propriety of such measures, as may be required on their 
part by necessary regard to the preservation of the Union. 
If eventually a more decisive course should be demanded' 
for the attainment of the same end; we should then be justi- 
fied by every consideration of moral duty, applicable to 
States or Communities, in enforcing the call of a Conven- 
tion, to reconsider the terms of our compact; or in releas- 
ing ourselves, by our own act, from a connection with other 
States, whose attention after laborious efforts, it is found 
impossible to arrest, on a subject of the deepest moment to 
our mutual welfare, growing out of our contract with them. 

The change in our present Constitution, supposed to be 
necessary to afford full security to the Southern States; and 
to the rights of minorities in general; according to the 
theory of our Federal system, is after all, believed to ex- 
tend only to provisions of mere form; without diminish- 
ing its original proportions — or depriving it of any attribute 
of power. 

The superintending control of the Stales in Conven- 
tions, on original Federal principles, over the govern- 
ment created by them — whenever on extraordinary occa- 
sions their interposition in that character, is demanded by 
i sovereign party, is necessary to prevent a total forgetful- 
\ess of their true relations to the system: and it is still more 



m 

necessary, in order lo avoid a recurrence to revolutionary 
principles on every such occasion, in absolute self-defence. 
A considerable approach to unanimity on fundamental 
principles, ought to exist, to sustain the practical adminis- 
tration, in any course of measures deemed oppressive, by a 
sovereign party to the Union: and the standard of unan- 
imity, as indicated in the rule for authorizing new powers 
by amendment, is by no means dangerous, in all the ex- 
tension of which it is capable, for confining tbe Govern- 
ment within its proper limits. Such at least seems to be the 
healing remedy best adapted to all the diseases incident to 
our political system: a remedy altogether congenial to its 
nature; having been the medicament, or rather the ali- 
ment, of its infancy. The impediments to tbe easy call of 
Conventions, for review, was doubtless designed to give to 
the experimental Constitution, under which we live, a 
fair trial; and to allow time for developing its true opera- 
tion. To this precaution it is hoped the Union itself will 
not fall a sacrifice; and the admirable labors of our fathers 
perish, for want of wisdom enough in their descendants, to 
adapt them to their present circumstances. 

Pineville r S. C. September 1832. 



APPENDIX. 



J\"ole to 1st Paragraph of Proposition 3. 

This exposition of the theory of our compound system of Government 
\Vill be found to afford, the only consistent solution of all the difficulties which 
have grown out of the discussions concerning the claims of the Stales, and of 
the Union, respectively, to fall Sovereignty. On the subject of State Sover- 
eignty in particular, great confusion of ideas has been introduced: and most' 
mischievously erroneous doctrines advanced, under the sanction of names, 
to whom I should assuredly yield the highest deference, if personal influence 
could be permitted to lead in opposition to the full convictions of the under- 
standing. 

Nothing can be more inconclusive than most of the arguments relied upon 
for this purpose. Some fix their attention exclusively on the existence of fed- 
erative characteristics, as the ground work of our system, — and from thence 
apply to the relations of the States all the incidents, that appertain to indepen- 
dent nations, bound to each other only by Treaties, of which each is necessa- 
rily the only arbiter for itself. They Ibrget in this view, that our. Federal 
organization, contains a large infusion of popular principles — from which with 
eqnal plausibility, directly opposite inferences have been drawn. 

In the same manner, the conceded fact that the States formed the compact 
of Union, as equal and independent Sovereigns, is constantly relied upon to 
prove that they must necessaiily have retained perfect individual Sovereignty: 
whereas it is evident they could have proceeded in no other manner, if it had 
been their intention, to alienate the whole or any part of their pre-existing 
Sovereign powers. — If an ordinary league and covenant between independent 
States had been then contemplated, it is evident that the existing State Gov- 
ernments, might have ratified it, without the aid of special Conventions of the 
people. But because, the* form of Federal Government established, did alien- 
ate the essential powers of Sovereignty appertaining to the several States; it 
was necessary to obtain the ratification of the people themselves, in every 
State, in order to give it a binding efficacy. Hence although the present Fed- 
eral Government originated with the State Governments entirely — the final de- 
cision or adoption, was necessarily transferred to those whose competency 
could not be brought into question, even though it had extended to the utter 
annihilation of State power — and the substitution of an entire new system. 

The character of our Government must therefore be judged of by the pro- 
visions of the Federal Compact itself, and not by extrinsic or historical evidence, 
except as collateral argument. Examined by this test we shall find, that the 
ultimate Sovereign power has been transferred, not to the Federal administr.i- 
tion, but to the States themselves, requiring for its exercise the concur- 
rence of three-fourths of them, who under the provision concerning a- 
mendments, possess an unlimited right (except in a single specified instance"* 
io new model the whole fabric at pleasure, by enlarging or abridging the pow- 
ers, both of the Union and of the States, with Sovereign discretion: and a 
fortiori to expound the existing rights of either of them, in cases of irrecon- 
cilable differences between them. 

Judge Harper, has with sufficient distinctness defined Sovereign power, to 
be the ultimate controling power known to any Constitution or form of Gov- 
ernment, according to its own proper theory. 



2ii 

A right to amend the Constitution of the United States so as to be obliga- 
tory on all t lie individual Slates, is, by Judge Harper's definition, an act of su- 
premacy wholly irreconcilable, with the claim of final Sovereignty as subsis- 
ting in the States; and no less fatal to the pretensions he advances in their 
behalf, than to those of the Federal Government itself. If there were no 
common arbiter to whose decision, the Governments both of the Union and 
the States were obliged to conform, our system would indeed present the 
anomaly of an imperium in imperio, which the consent of ages has pro- 
nounced impracticable and absurd. 

Whilst I agree perfectly with those who contend that the State authorities 
are in no degree subordinate to the administration of the General Govern- 
ment; 1 consider it equally' plain that the functionaries of the General Govern- 
ment, acting under the Constitution, with a State, are equally independent of 
the authorities of the State: and cannot be displaced or compelled to abandon 
their duties without violence, or force — that is without a Revolution. 

All the parts composing together a system of Government, however com- 
plicated in structure, must eventually be under the control of some single com- 
mon head or Sovereign: for Sovereignty, as Judge Harper justly observes, is a 
unity; incapable of subdivision. The actual distribution of administrative 
powers, amongst the several functionaries, required in a complex scheme, is 
of less importance than a regard to the principle of their equal subordination 
to a common superior, capable of-preventing conflicts on questions of. ight; 
which may and must arise, amongst authorities mutually independent of each 
other; and therefore the more liable to dangerous collision. The active ad- 
ministrations of the States and of the General Government, are in our sys- 
tem wholly distinct, both in the sphere of their proper operation, and in the 
responsibility by which they are held separately accountable, to the different 
constituent bodies, on whom they respectively depend, for their appointments 
to office. 

But it is manifest that a divided responsibility like this, ean have no tenden- 
cy to produce harmony in their movements, whilst opposite impulses may be 
communicated to them by their respective constituents: such as must necessa- 
rily occur, whenever the people of a State, are in opposition to the prevail- 
ing policy of the Union. Some acknowledged supreme power, capable of 
controliug all the governments of which our system is composed, supplying 
the place of a common Sovereign, in the last resort, was therefore necessa- 
ry to its perfection in theory ; and this important requisite has happily not been 
overlooked in the actual scheme of our Constitution. Supreme authority. 
which in the hands of any active administration however constituted, is sy- 
nonymous with despotism, in some of its various forms; has, with a due re- 
gard to the security of the States, and in perfect consistency with the modi- 
fied federative character of their United Government, been deposited not m 
any one, or even in all the branches of the ordinary Federal authorities: 
nor yet, in the States themselves, as individual parties to the Compact of 
Union: but in the States collectively, when called upon to exercise, the or- 
ganic, or amending power. To this body, as an occasional council of safe- 1 
ty, the individual States, originally separate Sovereigns, have consented t(t 
transfer an almost absolute supremacy, over the articles of Hiiion: that ne- 
cessarily has superseded their individual sovereignty; whilst it secures the 
safety and just rights of each, by the pledge of a perfect mutuality of inte- 
rest. Since therefore the sovereignty of the Union, has been lodged in a 
council of the States, to be exercised by the concurrence of three-fourths of 
them; it cannot, according to Judge Harper's just definition of Sovereignty. 
be pretended to exist also in the individual Stales; over each of whom inde- 
pendently of its own particular consent, that council, constitutionally pos- 
sesses, an almost unlimited authority: extending to an enlargement or dimi-, 
nution of their reserved rights at pleasure; and even to the modification of the 
whole form and structure, of their respective local Governments. 



23 

This view of the subject, appears to me fatal to all pretensions to 
.•Sovereignty in the individual States, in the proper technical sense of that 
term: and of course to the claims, founded on its presumed existence; of a 
right to declare as a sovereign, any act of Congress unconstitutional; or 
to require the functionaries of the United Government, to abstain from the 
discharge of their appropriate duties. 

The ordinary Federal Government being wholly derivative from the States, 
can of course have no pretensions to ultimate sovereignty as above defined: 
yet the powers it fairly exercises, as the active organ, of their collective 
sovereignty, includes some of the highest attributes incident to a sove 
reign, certainly not less important than those retained by the separati 
States: to whom it stands in the relation of a co-ordinate and not of a de- 
pendent authority. The infusion of a large proportion of the popular or de 
mocratic element into the composition of this Government, has created ti 
direct responsibility to constituents, possessing a relative weight and influ- 
ence, destructive of the Federative equality of the States by whom it was 
organized. It is therefore properly subjected to a higher eventual responsi 
bility, to the States collectively, as its creators, and sovereign arbiters 
amongst whom in that capacity, unanimity of assent, the essential principle 
of a mere confederation of equal parties, to a compact, has been, by thi 
fundamental compact itself, so far modified, that the negative or restraining 
control, which would otherwise have appertaine-1 to each State individually, 
can now only be exercised by the concurrence of one-fourth of them. Eu 
no responsibility of the General Government to a single State, or an} 
subjection to its mandate or prohibition, as a sovereign, can be made to con- 
sist with their existing relations to each other. To advance this claim, ant 
enforce it, is palpably to discard all the ooligations of the Compact o 
Union; or in other words, it is to assume the attitude of revolution; whethei 
that intention be acknowledged or not. It is to resist forcibly the only organ 
of administration, by which the States collectively whose supremacy we ac- 
knowledge, ever can act: and that, under the pretence of a right, which it 
admitted, must render the pacific interposition of the States, unavailing, with- 
out the subsequent sanction of the State authorities: for the right to nullify, 
which is claimed as an inseparable attribute of State power, will still survive, 
to defeat at ivill the obligation of conforming to any decision, of the con- 
troverted question. 

The right to nullify, if it exists, is manifestly susceptible of no limitations. 
In that respect at least, it is analagous to the right of Revolution; and thougl 
their identity is still vehemently disclaimed — the same resemblance can bi 
distinctly traced in all its features. The moment it is asserted, the laws am 
even the Constitution of the United States, though declared to be supreme 
must yield precedence to every act of the Legislature, with which they coim 
into conflict. The intervention of a State Convention, is relied upon, t> 
give this assumed precedence to the State laws. But it is forgotten that th- 
acts of a State Convention itself in opposition to the Constitution or Consti 
tutional laws of the Union, are of no more validity than an act of the ordina 
fy Legislature. Both are simply void, in any and every Court, high or low; 
until our Judges, and Jurors, are absolved (not by an officious construc- 
tion of the obligation of their oaths, but by open declaration of a compe- 
tent authority) from the duty of obedience to the paramount law, which has 
unequivocally pronounced them void. 

The little quirks and quibbles, by which Nullification is professedly support- 
ed, can never be sustained in any upright Court; so as to justify an inflic- 
tion of the penalties, which we are officially given to understand, constitutes 
its whole armory both for offence and defence. If we mean to abandon 
the Federal Union, even for a short period, under a hope of eventually 
recovering our place; and at the same time of securing our assailed rights; we 
must do it boldly, and without disguise. It is utterly unworthy of our en- 



lightened age, and free nation, to aim at accomplishing a great political rev©* 
lution, bv artifice and cunning, whilst the simple annunciation of our inten- 
tion, would probably be effectual. If t'n Union be necessary to us, or at 
least highly expedient, as 1 believe it is; we must be content to exercise pa- 
tience, under the wrongs it may occasionally inflict, whilst there remains a 
reasonable hope of their correction, by Constitutional means. But should an 
emergency arise, which requires of us the peremptory interdiction, of pur- 
posed tyranny on the part of our sister States, our own free associates in 
danger and in prosperity; we must not — cannot shrink from the responsi- 
bility. We must not seek to avoid a possible conflict with those, whose ty- 
ranny we denounce, by sheltering ourselves from danger under a cover of 
legal subtiltics, utterly unworthy of the occasion: and at the same moment pre- 
pare to tyrannize over ourown best citizens by subjecting them to penalties 
for the honest and fearless discharge of duties, enjoined by obligations, from 
which we refuse ourselves to release them. 

The only plausible reasons which can be assigned for claiming, or even fo* 
wishing to possess an authority so destructive to all hopes of harmony, in the 
regular action of our complex system of Government, by those of its ad\o- 
eates who are sincerely desirous of still preserving a shadow of the Union, 
(and I doubt not the sincerity of their professions on this subject,) are found- 
ed in the difficulty of procuring access to a Sovereign Convention of the 
Slates (not of the Sovereign States) by a minority, who may often justly 
consider the Federal Government, a trespasser on their rights. That the 
difficulty alleged, really exists, and that the flagrant abuses, it is used te 
sanction, are a justifiable cause of the prevailing discontent, is readily ad- 
mitted. It is moreover a settled conviction of my mind that a small minor- 
ity of the States (perhaps a single State) might safely be authorized to de- 
mand a reference of every doubtful question, in which its separate rights or 
those of its citizens were involved, to the same sovereign tribunal. Our Con- 
stitution on this point is manifestly defective; and decisive measures ought to 
be taken in concert by all the States, having a common interest with our- 
selves to check the progressive usurpations of a popular majority, under the 
broad license of arbitrary construction; which if much longer sanctioned. 
will place all the reserved rights of the States in subjection fo their tyrannical, 
will. But ought not a Convention of the States, to review the compact in re- 
gard to this and all other defective provisions, to be previously requested ; and 
even demanded, as a voluntary concession, necessary for the preservation 
of harmony, before any step is taken in disregard of our fair engagements le 
th" Union? And in tlie last resort, when duly fortified with the approbation 
and concurrence of our friends and neighbors, and thereby enabled under 
Providence, to control our own future destiny, might we not suspend for 
7/ time our political connection with the Union; encountering resolutely what- 
ever hazards it might be supposed to involve; without incurring the greato 
danger, and I fear the self-contempt, attendant npou a course of proceeding. 
•equally rash and disingenuous 



